Articles Posted in Criminal Penalties

If you are convicted of DUI in Michigan, then your driver’s license will either be restricted, suspended, or revoked. The exact driver license sanction will depend on the nature of your DUI conviction and your prior record. Driver license sanctions for DUI range anywhere from a 90-day restricted license to a 5-year hard revocation. These sanctions are not imposed until after you are convicted. A conviction occurs when you either plead guilty to an intoxicated or impaired driving or are found guilty by a judge or jury.

The specific driver license sanction depends on the nature of your conviction, the number of prior offenses you have, and when those prior offenses occurred.  The following is a brief explanation of these driver license sanctions:

First Offense Operating While Visibly Impaired (OWVI)

A Michigan chef has been accused of domestic violence by at least 7 different women, the Detroit News has reported. The Macomb County prosecuting attorney has charged him in at least one case involving his former wife.

According to Michigan domestic violence lawyers at the Barone Defense Firm, the term “domestic violence” refers to a specific kind of assault and/or battery; one where the accused has or had a domestic relationship or dating relationship of some kind with the alleged victim. Specifically, the applicable Michigan Compiled Laws section 750.81 provides that a domestic violence occurs when an individual assaults or assaults and batters any of the following:

  • Someone to whom they are or were married,

Recent Mlive news reports that a Michigan CPL (Concealed Pistol License) holder shot and killed a gunman who was “seen firing gunshots into the air and pointing a handgun at motorists.”  Will the CPL holder literally get away with murder, or will he go to prison?  The question depends on how Michigan’s Stand Your Ground Law is interpreted.

According to Michigan’s Stand Your Ground Law, a person may use deadly force against another if, but only if, he or she honestly and reasonably believe that the use of deadly force is necessary to prevent the imminent death or imminent great bodily harm or imminent sexual assault to himself or herself or to another individual. This is a simplified paraphrase of Michigan Compiled Laws section 780.972.

On a plain reading of the law therefore, it would appear that the CPL shooter has a viable self-defense claim. This assumes that three things are also true, because if they’re not, then no self-defense.  First, the CPL shooter must not have been himself engaged in a crime. This seems like a reasonable assumption based on what little has been reported about this incident so far. Second, he must have been somewhere he was legally allowed to be. Again, we do not know the answer from the reports, but it seems likely the CPL shooter was not trespassing or otherwise someplace he wasn’t lawfully allowed to be. Finally, the CPL shooter must have believed that deadly force was the only way to defend himself or another person. This seems self-evident.

As part of an ongoing investigation by the Federal Bureau of Investigations, several of Michigan’s pharmacists have been charged with Medicare and Medicaid Prescription Fraud.  The allegations include claims that at least one scheme lead to the defrauding of the Federal Government of more than five million dollars. Further, that fraudulent claims were submitted to Medicare, Medicaid and Blue Cross via the service dialdrugspharmacy.com. Medications fraudulently prescribed included Clozapine and Alprazolam. According to the complaint, some of these prescriptions were written for dead people.

According to Title 18 of the United States Code, health care fraud consists of the knowing implementation (or attempted implementation) of a scheme intended to defraud a health care program using false pretenses. A pharmacist can violate this law even if they are ignorant of the law itself, or if they only have the “general intent” to violate the law. This is because health care fraud under this section is not a specific intent crime. The law defines “fraud” as being the intentional deception or misrepresentation of facts which lead to the receiving of an unauthorized benefit. But here again the intent need only be general and not specific. According to the Michigan prescription fraud lawyers at the Barone Defense Firm, this can lead to unfair prosecution of pharmacists who never specifically intended to violate the law.

There are many kinds of prescription fraud.  Once type of prescription fraud involves a scheme whereby a prescription is set on “auto-refill” and then billed as scheduled when the patient never actually ordered or wanted the medication. These prescriptions are never picked up but the pharmacy non-the-less bills Medicare. This same medication can be “re-sold” many times over, thereby increasing the size of the auto-refill fraud. Another version of this kind of fraud involves giving the undelivered pills to patients, staff or medical sales reps for redistribution. This is most common with Opioid drugs that have significant street value.

What to Expect in the 48th District Court Bloomfield Hills Michigan

If you were arrested for a misdemeanor or felony, including drunk driving, within the cities of Birmingham, Bloomfield Hills, Keego Harbor, Sylvan Lake, Orchard Lake and the Townships of Bloomfield and West Bloomfield, then your case will be handled in the 48th Judicial District Court, located in Bloomfield Hills Michigan.

Arraignment Procedures

Your case will begin with an arraignment. This is the first court hearing where you will learn the exact nature of your charges and when the conditions of your bond are set. You should plan on hiring an attorney before your arraignment so that you can get the best possible bond.

After you are arraignment your case will be set for a pretrial. It is possible for your case to be resolved at the first pretrial, but in most instances, several pretrials are necessary before your case reaches a conclusion. A pretrial hearing is where your lawyer, the prosecuting attorney, and the judge, determine whether your case can be resolved without a trial. This is also when pretrial issues, such as legal defenses and evidentiary issues, would be resolved. The reason a pretrial is called a “pre”-trial is because these things need to be addressed by the various parties before the case can continue to trial. A pretrial is also where plea bargaining and sentence bargaining, if applicable, would be addressed.

What to Expect in the 52-1 District Court Novi Michigan

52-1 District Court in Novi Michigan has jurisdiction over many kinds of criminal cases, including drunk driving. The three judges at the Novi Court preside over a very large geographical area with a corresponding large population of approximately 175,000 people. If you were arrested for a serious felony or a misdemeanor such as domestic violence or drug possession, or if you were just given a ticket for something like drunk driving, in any of the following communities, then your case will be handled in the Novi District Court:

  • Commerce Township
  • Highland Township
  • Lyon Township
  • Milford Township
  • ​Novi
  • Novi Township
  • South Lyon
  • Village of Milford
  • ​Village of Wolverine Lake
  • Walled Lake
  • Wixom

First Appearance in Court

Generally, your first appearance in the court will be an arraignment most likely along with a pretrial. The purpose of an arraignment is for you to learn of the charges against you and for the court to schedule your bond. Because of this, it’s important to hire a legal advocate before your first court date. Relative to the bond, in many instances you will be given a “personal” bond, which means you don’t have to post any money. Instead, you are giving your word that you will appear as required for all future court appearances. You will also be ordered to comply with several bond conditions such as alcohol testing and you will not be allowed to leave the state without permission of the court.

Process of a Pretrial

The purpose of the pretrial is for the court to determine if any assistance is needed in obtaining discovery on your case including things like the police reports, breath or blood testing logs and video recordings. The court will also be interested to learn whether or not there are any issues of evidence that the court needs to address or assist with before the case can be set for trial. Finally, there will be a discussion as to whether or not your case can be resolved through plea or sentencing negotiations. You will appear with your legal advocate for all scheduled pretrials.

What to Expect in the 52-3 District Court in Rochester Michigan

If you’ve been arrested for drunk driving, or any other crime in the cities of Rochester and Rochester Hills, then your case will take place in the 52-3 District Court in Rochester Michigan. The Rochester District Court also serves the communities of Auburn Hills, Lake Angelus, Lake Orion, Addison Township, Orion Township, Oakland Township, and Oxford Township. The court is located at 700 Barclay Circle, Rochester Hills, MI 48307 and can be reached via telephone at (248) 853-5553.

Process of Arraignment

The judges in the 52-3 District Court in Rochester Michigan require that all felony cases, drunk driving cases and most misdemeanor cases begin with a “walk-in” arraignment that usually takes place before a magistrate. This means that no specific date will be set and you and your attorney can walk into the court on a date and time that is convenient for you. At the arraignment, the magistrate will tell you exactly what your charged with and you will be asked to enter a plea. Because of this it is a good idea for you to find and hire a lawyer before your walk-in arraignment.

Two things will be decided at the arraignment. The first thing is the dollar amount of your bond. This dollar amount can be anywhere from “personal recognizance,” where no money is necessary, all the way up to a very high cash bond. The second thing to be decided are the conditions of your bond. For a drunk driving case conditions will include abstinence from alcohol and drugs, and you will be required to undergo testing to prove that you are following this condition. As a condition of bond you will also be ordered to stay in Michigan and not the leave the state without permission of the court. For people who are required to travel this can sometimes very problematic as the judges are intransigent at times relative to the enforcement of this condition.

Michigan’s Stand Your Ground Law of Self Defense

In Michigan, you may use deadly force, with no duty to retreat, if you have an honest and reasonable belief that such force is necessary to prevent the imminent death, great bodily harm or sexual assault to yourself or to another individual.

To take advantage of this self-defense law, which is found at Michigan Compiled Laws sec. 780.972, you must be able to prove three things:

  1. That you aren’t engaged in a crime,
  2. That you are somewhere you’re legally allowed to be; and,
  3. That you feel deadly force is the only way to defend yourself or another person.

Because the law specifically indicates that you may use deadly force with no duty to retreat it is often referred to as a “stand your ground” law. This stand your ground law applies both inside and outside your home.  However, if you are using self-defense inside your home, you may be able to take advantage of the presumption of self-defense that is contained within Michigan’s home defense law, which is found at Michigan Compiled Laws sec. 780.951. This law is also sometimes referred to as the “castle doctrine.” However, this castle doctrine only applies in very narrow circumstances. If a judge or jury finds that these narrow circumstances don’t apply, then you will not be entitled to the presumption that you were acting in self-defense.

What is Constructive Possession of Guns or Drugs?

Constructive possession is a legal fiction that allows you to be charged with a serious crime even when the guns or drugs are not found on you. Usually this will happen when you are the driver or passenger of a car where the guns or drugs are found, or when they are found in a home you occupy.  To fully understand this legal concept, it is helpful to start with a definition of the term “constructive.”

According to the Oxford English Dictionary, the word “constructive” means: “not obvious or stated explicitly; derived by inference.” In the law the word constructive is used to cover many things that are implied, inferred or imputed to a person under a specific set of circumstances.  So, lawyers use phrases like “constructive contract” to refer to a contract that can be implied by people’s behavior even though the terms of the contract were never written down on a signed document. Similar legal concepts include constructive notice, constructive assent, constructive trust, constructive conversion, and so on.

With constructive possession it is the possession that is implied or inferred.  According to Black’s Law Dictionary, constructive possession occurs “where one does not have physical custody or possession but is in a position to exercise dominion or control over a thing.” Michigan courts recognize that the term “possession” includes both actual and constructive possession. Accordingly, a person has constructive possession if there is proximity to the article together with indicia of control.[i] Said differently, a person has constructive possession if the location of the drugs or the gun is known, and it is reasonably accessible to the person. Physical possession is not necessary if the person has constructive possession.[ii] Constructive possession can be established with circumstantial evidence. [iii]

Keeping Drug Possession Charges Off the Record

Having drug charges on your criminal record can be a life-changing experience.  Such charges can impact your job, your income, and your future.  However, depending on the circumstances, your attorney may be able to help you keep your drug charges off your permanent criminal record.  These methods can present you with great advantages and can help you to minimize the damage a drug conviction could cause.

The best way to avoid a criminal record is to find a lawyer who can win your case. Consequently, finding and hiring an experienced drug possession lawyer is a good start. Your lawyer will look at the facts of the case, including the results of a chemical test, as well as the police conduct, to determine what legal defenses, if any, apply to your case.  These will be discussed with you so that you can make an informed decision about how to proceed.  Your trial options should be discussed with your lawyer as well.

Once all your legal options and defenses have been pursued, the next step is to decide if you should plead guilty.  If you do decide that this is your best option, then there are possibly two different ways to avoid a conviction even when you plead guilty.  These are called “section 7411” and HYTA.

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